D'Ortenzio, Angela v Telstra Corp [1998] FCA 877

FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - Workplace Relations Act 1996 (Cth), s 170CC, s 170ED, s 170DE - Workplace Relations Regulations (Cth), reg 30B - termination of employment - fixed term contract - extensions to the term of the contract - claim that termination was without a valid reason contrary to Division 3 Part VIA of the Workplace Relations Act 1996 (Cth) - whether termination at the end of the fixed term at the initiative of the employer - whether the employee was engaged for a specific task. Workplace Relations Act 1996 (Cth): s 170CC, s 170DE, s 170ED Div 3 Pt VIA Workplace Relations Regulations (Cth): reg 30B(1)(aa), reg 30B(1)(b) Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 - cited Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 - cited Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 - cited ANGELA D'ORTENZIO v TELSTRA CORPORATION SG 2 of 1998 FOSTER, MANSFIELD & GOLDBERG JJ ADELAIDE 22 JULY 1998

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 2 of 1998

BETWEEN: ANGELA D'ORTENZIO

Appellant

AND: TELSTRA CORPORATION

Respondent

JUDGEs: FOSTER, MANSFIELD & GOLDBERG Jj

DATE OF ORDER: 22 JULY 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 2 of 1998

BETWEEN: ANGELA D'ORTENZIO

Appellant

AND: TELSTRA CORPORATION

Respondent

JUDGES: foster, mansfield & GOLDBERG Jj

DATE: 22 JULY 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT THE COURT: Introduction On 1 November 1996 the appellant's employment with the respondent was terminated. The appellant says that such termination was in breach of s 170DE(1) of the Workplace Relations Act 1996 (Cth) ("the Act") and that it was unlawful. She applied to the court pursuant to s 170ED of the Act for reinstatement. On 7 May 1997 a judicial registrar of the Court found that the termination of the appellant's employment by the respondent was in breach of s 170DE of the Act and ordered that the respondent reinstate the appellant on terms and conditions no less favourable than those on which she was employed immediately before the termination of her employment and that the respondent pay to the appellant remuneration lost by her, because of the termination of her employment, from 1 November 1996 until the date her re‑employment was reinstated (excluding a specified period). On 28 May 1997 the respondent, pursuant to s 377 of the Act, filed a notice of motion to review the orders of the judicial registrar and the review came on for hearing before von Doussa J on 15 September 1997. On 11 December 1997 von Doussa J dismissed the appellant's application. On 15 January 1998 the appellant filed a notice of appeal which specified the following grounds: "The termination was unlawful s170-DE Act Farrell - judicial - order of reinstatement 30/5/97". On 19 January 1998 the respondent filed a motion to strike out the appeal and on 20 March 1998 the appellant filed an amended notice of appeal which set out the following grounds: "Section 170DE(2) - 170DE(1) sch 2(4) 521 S 170DF(e) Section 170D(1) as set out in the affidavit Norman Waterhouse to bring Telstra ID card (return 1998) Section 170CB(2) enforced by s. 170FA s 21 to Court" On 1 May 1998 O'Loughlin J dismissed the respondent's motion to strike out the appeal on the ground that a single judge does not have the power to dismiss a notice of appeal. On 22 May 1998 the respondent filed a notice of motion seeking an order that the amended notice of appeal be struck out. The respondent did not persist with that motion and the issue whether a single judge has the power to dismiss a notice of appeal to the Full Court is not before the Court. Background to appellant's claim The appellant commenced employment with the respondent in the "pay‑by‑phone" section on 13 May 1993. The terms of the appellant's employment were outlined in a letter dated 14 May 1993 in the following terms: "Dear Angela ADVICE OF PERIOD OF FIXED TERM EMPLOYMENT I am pleased to offer you a period of fixed term employment, the reason for which is to provide relief in the Pay‑by‑Phone area, as an Admin Officer 1 from 13/05/93 to 16/06/93 on a salary of $19663 p.a. (÷ 15% loading) on an ad hoc basis. This period of employment is subject to your conduct, diligence and efficiency being satisfactory. Please note that as your employment is for a fixed term, you are not eligible for redundancy benefits, and this period of employment is not to be interpreted as an expectation of longer term employment. Yours sincerely ..." Apart from a period from 16 June 1995 to 31 July 1995 the appellant was continuously employed in the "pay‑by‑phone" section until 12 January 1996 under a series of contracts, each stated to be for fixed terms of employment of three months on terms substantially similar to those set out in the letter of 14 May 1993. In about December 1995 the appellant applied to the respondent for a position to work in its "winback" program in the Service Provider Service Centre which was a program designed to process applications from former Telstra customers who now wished to transfer back to Telstra. The respondent had a backlog of applications and it decided to engage the services of about 60 fixed term employees for approximately three months to process the backlog. The appellant's application was successful and it was explained to her, and she understood, that the full‑time position on offer involved employment for a specific project that was intended to be short term. The appellant accepted the position even though it was only a three month position as she felt that it would improve her chances of eventually gaining permanent employment. The appellant's employment in the winback position was evidenced by a letter of 15 January 1996 in the following relevant terms: "I am pleased to offer you fixed term employment with Telstra in the Service Provider Service Centre as an Administrative Officer Grade 1, for a period of 3 months from Monday 15 January 1996 until Friday 12 April 1996 inclusive, commencing at 15 Ayliffes Rd St Mary's. ... Your period of employment may be extended depending on the business requirements of Telstra. ... Could you please indicate your acceptance of this offer of fixed term of employment by signing the attachment and returning it to me today to enable personnel records to be correctly processed." The attachment to the letter signed by the appellant on 15 January 1996 was an acknowledgment of the terms and conditions set out in the letter. At the time this letter was sent there was still current between the appellant and the respondent a fixed term contract for part‑time employment in the "pay‑by‑phone" section as the appellant had on 22 December 1995 confirmed in writing her acceptance of an offer for fixed term employment from 18 December 1995 to 15 March 1996 in the "pay‑by‑phone" section. However, upon her transfer, that employment was relinquished in favour of employment in the new position but the appellant was told that the "pay‑by‑phone" position would remain open to her for three months so that she could return to it if her employment in the winback program came to an end in that time. It did not. The appellant knew that the position in the "pay‑by‑phone" area would remain open only for three months and that thereafter she knew that the position would not be available to her. She observed before the primary judge: "You had to take chances".